ANGELO GERRY KONIDARIS In Person v COMMISSIONER OF POLICE In Person [2025] SASC 191

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMOLICZ) MCCRM-23-023255 Appellant: ANGELO GERRY KONIDARIS In Person Counsel: MR A GRAHAM - Solicitor: CALDICOTT + ISAACS LAWYERS Respondent: COMMISSIONER OF POLICE In Person Counsel: MS K DRAPER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 07/08/2025, 13/08/2025 File No/s: SCCRM-25-019216 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KONIDARIS v POLICE [2025] SASC 191 Judgment of the Honourable Justice Gray 18 November 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES EVIDENCE - PROOF - CORROBORATION - FALSE DENIALS AND LIES MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT This matter concerns an appeal against a conviction following a trial in the Magistrates Court for an offence of failing to stop, render assistance and present to police after an accident in which a person was injured, contrary to s 43(1) of the Road Traffic Act 1961 (SA). The appellant on appeal contended that the learned Magistrate erred in finding that a defence available to the appellant pursuant to s 43(3) of the Road Traffic Act 1961 (SA), namely whether the appellant was unaware that the accident had occurred and that lack of awareness was reasonable in the circumstances, was not made out. It was contended that the learned Magistrate erred in finding that the appellant made admissions to police in his record of interview. It was also contended that the learned Magistrate used those admissions to find that the appellant’s statement to police that he intended to report the collision as a ‘near miss’ was a lie, and that the learned Magistrate used consciousness of guilt reasoning to reject the appellant’s defence. -- 1 of 13 -- A further error contended for by the appellant was that the learned Magistrate found that the appellant’s van did not brake before the collision but did so after. That finding was used to impugn the appellant’s credibility and find that the appellant was aware of the collision. The respondent contended that a finding that the appellant made admissions to police was open on the evidence, and that the evidence was not used as evidence of consciousness of guilt, and that its use to assess the appellant’s credit was appropriate. It was conceded on appeal that the learned Magistrate erred as to the finding that the van only applied brakes after the collision, but that no outcome error was consequent upon that finding. Held, allowing the appeal on grounds 1(b) and 2, dismissing ground 1(a), quashing the conviction and remitting the matter for retrial: 1. The finding that the appellant made admissions was a finding available on the evidence and no error is demonstrated in the use of those admissions to assess the credibility of the appellant: at [19]; 2. There was process error in the inference of a consciousness of guilt from a lie as the learned Magistrate was not satisfied beyond reasonable doubt of such an inference: at [35]; and, 3. The finding that the van's brakes were applied after, and not prior to, the collision was a error of fact and was contrary to the evidence. This error was material to the assessment of the appellant’s credibility and findings made by the learned Magistrate concerning the appellant’s knowledge that he had collided with the pedestrian: at [43]. Joint Criminal Rules (SA) r 191; Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 43, referred to. Browne v Dunn (1893) 6 R. 67; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193; Harris v The Queen (1990) 55 SASR 321; R v Hillier [2007] HCA 13; (2007) 228 CLR 618; Jaunay v Police (SA) [2023] SASC 38; R v Keenan [2009] HCA 1; (2009) 236 CLR 397; Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403; R v Melrose (1987) 30 A Crim R 332; R v Power [1996] SASC 5653; (1996) 87 A Crim R 407; R v Quist [2017] SASCFC 37; (2017) 127 SASR 471; Shepherd v The Queen [1990] HCA 56 (1990) 170 CLR 573; Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402, considered. -- 2 of 13 -- KONIDARIS v POLICE [2025] SASC 191 Criminal: Magistrates Appeal 1 GRAY J: The appellant was tried and convicted in the Magistrates Court of one count of fail to stop, render assistance and present to police after an accident in which a person was injured (‘the offence’) contrary to s 43(1) of the Road Traffic Act 1961 (SA) (‘RTA’). The appellant appeals against the conviction. 2 The grounds of appeal pursued by the appellant1 include that the learned Magistrate erred with respect to his assessment of the appellant’s police interview in two ways by:2 − Using the appellant’s ‘admissions’3 contained at page 6 of exhibit MFI P34 to find that the appellant knowingly collided with the pedestrian (ground 1(a)); and, − Finding the appellant’s statement that he intended to report the “near miss” as a lie, and using the lie as evidence of consciousness of guilt and/or going to credit (ground 1(b)). 3 Further, the appellant complains that the learned Magistrate erred in finding the appellant’s van did not brake before the collision, but did so after, and used that finding of fact to:5 − Impugn the credibility of the appellant (ground 2(a)); and, − Find that the appellant was aware of the collision (ground 2(b)). 4 The respondent submits that the learned Magistrate’s findings that the appellant made admissions concerning hitting the pedestrian was open on the evidence. The respondent also submits that the appellant mischaracterises the use made of the “near miss” evidence as evidence of a consciousness of guilt. The respondent submits that the learned Magistrate used this evidence in a permissible way to assess the credit of the appellant’s evidence. In relation to ground 2, the respondent accepts that there was a factual error in the learned Magistrate’s 1 Ground 2 as initially formulated in the notice of appeal and grounds of appeal (FDN 1 and FDN 2) was abandoned: see Appellant’s Written Submissions (FDN 8) (‘AWS’) at 2, [7]. The appellant amended his grounds, reformulating ground 1 and adding a new ground 2 (FDN 15). 2 Amended Appeal (FDN 15), ground 1. 3 It is noted that the appellant also complains as to the learned Magistrate making a finding that the statements at p. 6 of exhibit MFI P3 were, in fact, admissions. 4 Exhibit MFI P3 was a transcript of the body-worn footage showing the police interview with the appellant which was admitted as Exhibit P4 at trial. I consider this ground as a complaint concerning the use of Exhibit P4 at trial. 5 Amended Appeal (FDN 15), ground 2. -- 3 of 13 -- [2025] SASC 191 Gray J 2 finding,6 but submits that that factual finding did not adduce any error in the outcome.7 Background 5 It was not in dispute at trial that on the evening of 2 March 2023, a vehicle driven by the appellant collided with a pedestrian, Mr Kapitui, at the intersection of North Terrace and King William Street. Nor was it in dispute that the appellant did not stop and render assistance. This is the conduct that comprises the offence. 6 The issues at trial concerned whether the injury could be circumstantially proved as Mr Kapitui did not give evidence, and whether the appellant had made out, on the balance of probabilities, the defence on which he relied, namely a lack of knowledge as to the accident occurring.8 7 In proving that the appellant’s conduct caused the injury occasioned to Mr Kapitui, the learned Magistrate relied on the CCTV footage, the body-worn footage of Senior Constable Shearer and his evidence at trial, and the consistency of the damage caused to the appellant’s vehicle on the passenger side and the CCTV footage showing the same side of the vehicle making contact with Mr Kapitui.9 The findings of the learned Magistrate as to the appellant’s conduct being causative of injury are not contested. 8 An issue in the court below was the availability of a defence pursuant to s 43(3)(a) of the RTA. The relevant portions of s 43 of the RTA read as follows: (1) The driver of a vehicle involved in an accident in which a person is killed or injured must— (a) immediately after the accident— (i) stop the vehicle; and (ii) give all possible assistance; and (b) not more than 90 minutes after the accident, present themself to a police officer at the scene of the accident or at a police station for the purpose of providing particulars of the accident and submitting to any requirement to undergo a test relating to the presence of alcohol or a drug in the driver's blood or oral fluid. Penalty: (a) imprisonment for 5 years; and (b) disqualification from holding or obtaining a driver's licence for such period, being not less than 1 year, as the court thinks fit. 6 Appeal Transcript dated 7 & 13 August 2025 at T70.14 (‘AT’). 7 AT at T71.26-9. 8 Pursuant to Road Traffic Act 1961 (SA) s 43(3)(a). 9 Appeal Book (FDN 9) at 28-30 (Judgment of Magistrate Smolicz in Police v Konidaris dated 28 August 2024 (‘Verdict’) at 11-3, [55]-[69]) (‘AB’). -- 4 of 13 -- [2025] SASC 191 Gray J 3 … (3) It is a defence to a charge of an offence against subsection (1) to prove that— (a) the defendant was unaware that the accident had occurred and that the defendant's lack of awareness was reasonable in the circumstances. 9 In establishing a defence under s 43(3)(a), the appellant in the trial court relied on a number of factors:10 1. The appellant had time to stop and render assistance; 2. He voluntarily attended upon police; 3. He maintained that he did not hit Mr Kapitui and endeavoured to provide assistance to police (and he gave evidence on oath to that effect); 4. He was of prior good character; 5. That the circumstances of the incident are not such that it is impossible for the appellant not to have known that the incident had occurred; and, 6. That he had previously provided details in circumstances of a motor vehicle accident. 10 It is the learned Magistrate’s consideration of the availability of the statutory defence, which forms the basis of the grounds of appeal. Statutory basis of the appeal 11 As this matter concerns an appeal under s 42(1) of the Magistrates Court Act 1991 (SA), it is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). The appeal is to be conducted by way of rehearing, with the Court permitted to draw its own inferences from the evidence adduced in the proceeding at first instance.11 12 The Court is required to conduct a review of the evidence before the learned Magistrate whilst, at the same time, making due allowance for the advantage of the learned Magistrate in seeing and hearing the evidence being given at trial.12 13 Whilst the Court must set aside a challenged finding of fact which is demonstrated to be wrong, the appeal is not a de novo hearing and the appellate court should not substitute its own view or otherwise interfere unless it is satisfied that the trier of fact fell into error.13 14 In the course of conducting such a review, the appellate court should have regard to the findings of the trial court, including any advantage that the learned 10 AB at 31 (Verdict at 14, [72]-[77]). 11 Joint Criminal Rules 2022 (SA) rr 191.1(1)(a)-(b). 12 Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403 at 410, [38] (White J). 13 Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). -- 5 of 13 -- [2025] SASC 191 Gray J 4 Magistrate had in making those findings, which include the opportunity of the learned Magistrate to assess the reliability and credibility of witnesses, having seen and heard their evidence in the context of the evidence as a whole.14 Grounds of appeal Ground 1(a) Submissions of the parties 15 In respect of ground 1(a), the appellant contends that the learned Magistrate found beyond reasonable doubt that the appellant made admissions insofar that they established that the appellant knew that he had hit the pedestrian.15 The appellant contends that this finding is made in paragraph [80] of the learned Magistrate’s verdict. It was further submitted that the finding that the appellant knowingly made admissions to hitting the pedestrian, as opposed to making the statement inadvertently, was not open.16 In making that finding, it was submitted that the learned Magistrate failed to have regard to:17 1. The fact that the appellant had repeatedly denied knowingly hitting the pedestrian before making the “admission”; 2. The fact that following the relevant exchange that the appellant again repeatedly denied knowingly hitting the pedestrian; 3. The illogicality of appellant intentionally making the purported admission in the context of repeatedly denying that he hit the pedestrian; 4. There was no inconsistency in the appellant’s evidence that he did not deliberately make the admissions. 16 The respondent contends that the submission advanced by the appellant amounts to a contention that the finding that the appellant made admissions regarding his knowledge of the collision was not available on the evidence.18 The respondent states that this ground as articulated in the submissions conflates the finding of something being “not open” on the evidence with a finding that the learned Magistrate simply chose not to place emphasis on matters favourable to the accused.19 The respondent contends that the learned Magistrate found the appellant to be an “evasive and inconsistent” witness and that the findings of the learned Magistrate which are challenged by this ground are better characterised as an assessment of the credit of the appellant’s police interview and the viva voce evidence at trial.20 14 Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). 15 AWS at 6, [13]. 16 AWS at 6, [14]. 17 AWS at 7, [15]. 18 Respondent’s Written Submissions (FDN 10) (‘RWS’) at [11]. 19 RWS at 3, [13]. 20 RWS at 3-4, [15]. -- 6 of 13 -- [2025] SASC 191 Gray J 5 Consideration in respect of ground 1(a) 17 I commence a consideration of this ground of appeal by reference to paragraph [80] of the judgment of the learned Magistrate which is said to contain error. That paragraph states:21 There are some very curious aspects about the interview the defendant gave to the police which I will address in more detail below. First, I find that he was prevaricating between admitting having knowingly struck the pedestrian and then denying he knew he had struck him. I find the defendant made admissions that he knowingly struck the pedestrian on five separate occasions during the interview before changing his evidence. I find the defendant’s admission that he hit the pedestrian during the interview were to clear and unambiguous police questions. In cross examination, he denied making any admissions and claimed he was nervous and tired during the interview. Having regard to the questions asked and the number of times the defendant made admissions I find it difficult to accept the defendant misunderstood the question or was confused because he was nervous during the police interview. I find the defendant’s evidence at trial that he did not make admissions during the interview inconsistent and lacking credibility. Having viewed the entire video of the interview, I have formed the impression that the defendant was not wholly truthful in that interview about his reasons for not stopping after the collision and giving all possible assistance. I reject as a reasonable possibility the defendant’s evidence at trial that he did not knowingly make admissions to hitting Mr Kapitui and I find it proven beyond reasonable doubt that he did make admissions during the interview to knowingly hitting Mr Kapitui. (citations omitted) 18 I find that the learned Magistrate’s reasons at paragraph [80] contain an assessment of the evidence of the appellant at trial and in his police interview with respect to credibility. The learned Magistrate has used that assessment of the appellant’s evidence to form the conclusion that the evidence was “inconsistent and lacking credibility”. 19 To the extent that the appellant has advanced the contention that the learned Magistrate’s findings regarding the appellant’s admissions were “not open” on the evidence, I reject that contention. There is a distinction between something being “not open” on the evidence and an approach which declines to make findings in favour of the appellant. In my view, it was open to the learned Magistrate to find that some admissions were made. It was open to the learned Magistrate to use that finding to assess the appellant’s credibility. 20 The learned Magistrate found that the appellant had prevaricated in his answers to police as to whether he had hit Mr Kapitui with his vehicle or not. The learned Magistrate rejected the submission of the appellant that admissions were not made to police in light of this prevarication. This led to the learned Magistrate finding that the appellant was not wholly truthful in either the record of interview or his evidence at trial.22 21 AB at 34 (Verdict at 17, [80]). 22 AB at 34 (Verdict at 17, [80]). -- 7 of 13 -- [2025] SASC 191 Gray J 6 21 The view I have expressed above concerning the manner in which the learned Magistrate dealt with the appellant’s evidence is further supported by the findings expressed by the learned Magistrate at paragraph [95]:23 In conclusion, I did not find the defendant to be a credible witness and I am not satisfied on the balance of probabilities that the defendant was unaware that he had struck Mr Kapitui. Further, I find the defendant’s claimed lack of awareness is not reasonable. In making these findings, I have had regard to the clear CCTV footage of the collision, the speed and velocity of the travelling vehicle, the damage caused to the vehicle, the impact of the collision causing the defendant to be knocked to the ground, the thud sound generated by the collision, the defendant’s action in braking immediately after the collision and the defendant’s conduct in stopping briefly after he had passed through the intersection and looking back. 22 The learned Magistrate’s finding that the appellant admitted knowledge of the collision was available on the evidence. 23 I dismiss ground 1(a) of the appeal. Ground 1(b) Submissions of the parties 24 The appellant submits that the learned Magistrate considered the aspect of the interview where the appellant stated he intended to report the “near miss” to police.24 The appellant states that the learned Magistrate found that the reason the appellant falsely claimed that he intended to report the near miss was because he knew he had hit the pedestrian.25 The appellant states that this finding is made by the learned Magistrate in paragraph [84] of the learned Magistrate’s verdict. 25 The appellant submits that the reasoning of the learned Magistrate indicates that the appellant lied out of a consciousness of guilt.26 In circumstances where the prosecution in the trial court had not led the evidence of lies for a consciousness of guilt purpose, the appellant submitted that the learned Magistrate ought not have made that findings as:27 1. That the appellant was lying from a consciousness of guilt was never put to the appellant in cross-examination, contrary to the rule in Browne v Dunn;28 2. That, notwithstanding that the learned Magistrate was considering a defence where the defendant bore the persuasive onus, there was a failure to consider whether other explanations for the statement existed, including whether there was: i. a genuine intention to report a near miss in the context of the appellant repeatedly encountering drunk persons crossing that intersection dangerously; 23 AB at 37 (Verdict at 20, [95]). 24 AWS at 7, [18]. 25 AWS at 7, [18]. 26 AWS at 7, [20]. 27 AWS at 7, [21]. 28 Browne v Dunn (1893) 6 R. 67. -- 8 of 13 -- [2025] SASC 191 Gray J 7 ii. an attempt by the appellant to cast blame on the pedestrian; or, iii. an attempt by the appellant to persuade the police that he was not trying to avoid them and therefore less likely to have knowingly failed to stop and render assistance. 26 The appellant further submits that it is rare that a statement after a person has been accused can be probative of guilt because persons under suspicion are likely to want to distance themselves from guilt. It is also submitted that whilst a full Edwards29 direction was not necessary in circumstances where the learned Magistrate was considering whether to accept the appellant on balance, the reasoning is instructive and the learned Magistrate did not have regard to whether:30 a. the statement was false; b. the false statement was a lie, i.e. a deliberate untruth; c. the lie was about a material issue, and; d. the defendant told the lie because he or she knew that the truth of the matter about which he or she lied would implicate him or her in the offence or an element of it, and as a corollary the possibility that the lie was told for some other reason, such as out of panic or to escape an unjust accusation, or because of guilt of some other lesser wrongdoing, to protect some other person or to avoid a consequence extraneous to the offence, is excluded. 27 In reply to the respondent’s submission that the findings of the learned Magistrate were used to impugn only the appellant’s credit, and that the learned Magistrate did not engage in consciousness of guilt reasoning, the appellant submitted that the phraseology used in the last sentence of the paragraph concerning the “near miss” evidence31 could only reveal consciousness of guilt reasoning. 28 The respondent submitted that the learned Magistrate did not find that the appellant falsely claimed that he intended to report the near miss because he knew he had hit a pedestrian, but rather the finding of the learned Magistrate was that there was a “strong inference” from this evidence that the defendant was aware. The respondent submits that this indicates that the learned Magistrate used the finding circumstantially.32 The omission of a reference to this evidence in paragraph [95] of the learned Magistrate’s reasons, the respondent submits, indicates that the reasoning complained of in paragraph [84] was not a factor that weighed into the finding of guilt made by the learned Magistrate. 29 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (Deane, Dawson and Gaudron JJ, Brennan and McHugh JJ dissenting). 30 AWS at 8, [24]. 31 AB at 35 (Verdict at 18, [84]). 32 See AB at 35 (Verdict at 18, [84]) and RWS at 4, [17]. -- 9 of 13 -- [2025] SASC 191 Gray J 8 Consideration in respect of ground 1(b) 29 I commence a consideration of this ground by reference to paragraph [84] of the learned Magistrate’s reasons, which provides:33 The defendant claims he did not hit the person but claims it was a near miss and he was going to come into Hindley Street Police Station and report what he experienced that night. When questioned about what he was coming into the station to report, the defendant said he wanted to tell the police that a person was jaywalking, and he had a close experience. I find the defendant’s evidence is inconsistent. I do not accept that it is logical that the defendant would report a near miss involving a jaywalker if he claims he did not hit the pedestrian and thought he walked off. I find there is a strong inference from this evidence that the defendant was aware that he hit the pedestrian and that’s why he stated during his interview that he said he was going to report the incident to the police. 30 I accept as the respondent advances that lies may be admitted and used for a trier of fact to assess credit, and that this differs from evidence admitted of a lie as being probative of guilt. 31 I accept as the respondent advances34 that evidence of post-offence conduct may also be a category of circumstantial evidence and that unlike lies admitted for a consciousness of guilt purpose, admission of lies as a species of circumstantial evidence does not necessitate a finding that the lie was told to avoid implication beyond reasonable doubt.35 32 I accept that it is possible to interpret the reasons of learned Magistrate in a number of ways. I accept that the learned Magistrate does not in paragraph [95] restate again the issue of the explanation provided by the appellant which the learned Magistrate finds to be a lie. The difficulty, however, with the reasoning of the learned Magistrate is that, even having regard to these matters and the other matters advanced by the respondent, in my view, reading paragraph [84], in the context of the judgment, indicates that the learned Magistrate has reasoned in the following way: 1. The learned Magistrate does not accept the claim by the appellant that he did not hit the person but believed it to be a near miss and that he was going to go to the Hindley Street Police Station and report a near miss. The learned Magistrate finds the appellant’s evidence to be inconsistent;36 33 AB at 35 (Verdict at 18, [84]). 34 RWS at 5-6, [24]. 35 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J); Shepherd v The Queen [1990] HCA 56 (1990) 170 CLR 573 at 579-80 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing); R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 637-9, [46] and [49] (Gummow, Hayne and Crennan JJ, Gleeson CJ agreeing); Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 at 410-1, [44] (Gleeson CJ and Hayne J); R v Keenan [2009] HCA 1; (2009) 236 CLR 397 at 435, [128] (Kiefel J, Hayne, Heydon and Crennan JJ agreeing). 36 AB at 35 (Verdict at 18, [84]). -- 10 of 13 -- [2025] SASC 191 Gray J 9 2. The learned Magistrate has drawn an inference from that evidence that the appellant was aware that he hit the pedestrian;37 and, 3. The learned Magistrate has further concluded that because the appellant was aware that he hit the pedestrian, that is why he stated in the interview that he was going to report the incident to police.38 33 The learned Magistrate found that the appellant’s wish to report a “near miss” to police was illogical, and a strong inference arose that the appellant was aware he had hit Mr Kapitui with his vehicle and that is why he said he would make the report to police as to a “near miss.”39 34 The circumstances in which it is appropriate to deploy lies as capable of being used as positive evidence of guilt are rare and caution should be exercised when using lies in this way.40 When a lie has been left to the trier of fact as capable of being probative of guilt, it is for the trier of fact to decide on the whole of the evidence what inference is to be drawn from it. However, if the trier of fact is to infer a consciousness of guilt because of the lie the trier of fact must be satisfied beyond reasonable doubt of such an inference.41 35 I am unable to discern from the reasons of the learned Magistrate whether the learned Magistrate was satisfied beyond reasonable doubt of the relevant inference.42 I am also unable to discern in the learned Magistrate’s reasons an exclusion of other reasonable explanations for the appellant’s reference to the intention to report a “near miss” to police. Whilst the learned Magistrate has given considered and detailed reasons, the reference to a “strong inference” without reference to the relevant requisite standard, together with the reasoning process set out in paragraph [84], and particularly in the last sentence of that paragraph, demonstrates a process error. The reasons contain an impermissible form of reasoning from the explanation given by the appellant to police of the intention to report a near miss, to a finding that what was said by the appellant, was a statement made because of a consciousness of guilt. The explanation proffered by the appellant to police of the intended reporting of the “near miss” is used to make a finding that that was said because of a consciousness of guilt. The learned Magistrate in the last sentence of paragraph [84] found a strong inference the appellant was aware that he had hit Mr Kapitui with his vehicle and states that that is why the appellant stated he was going to report the incident to police. 37 See AB at 35 (Verdict at 18, [84]), particularly the penultimate sentence and last sentence of that paragraph. 38 See AB at 35 (Verdict at 18, [84]), particularly the last sentence. 39 AB at 35 (Verdict at 18, [84]). 40 Harris v The Queen (1990) 55 SASR 321 at 323 (King CJ, White and Mohr JJ agreeing); R v Quist [2017] SASCFC 37; (2017) 127 SASR 471 at 504, [104] (Peek J) and 551-2, [285] (Lovell J). 41 R v Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 409 (Doyle CJ, quoting Shepherdson J in R v Melrose (1987) 30 A Crim R 332 at 338-9). 42 Given this conclusion, it is unnecessary to address the procedural fairness submissions further put in support of this ground in oral argument, which were not particularised in the amended grounds of appeal. -- 11 of 13 -- [2025] SASC 191 Gray J 10 36 It follows that I would allow ground 1(b) of the appeal. Ground 2 Submissions of the parties 37 The learned Magistrate found at paragraphs [57] and [88] of the judgment that the CCTV of the collision showed that the van did not brake before colliding with the pedestrian. The learned Magistrate rejected the evidence of the appellant that he took evasive action by “braking and swerving”.43 The learned Magistrate also found that the appellant applied the brakes immediately after the collision and that this was evidence that tended to show he was aware of the collision.44 38 The appellant complains that the learned Magistrate erred in finding the appellant’s van did not brake before the collision, but did so after, and the Magistrate further erred in using that finding of fact to:45 1. Impugn the credibility of the appellant; and, 2. Find that the appellant was aware of the collision. 39 In relation to ground 2, the respondent accepts that there was a factual error in the learned Magistrate’s finding regarding the braking by the appellant,46 but submits that that factual finding was not relied upon in any material way by the learned Magistrate. Consideration in respect of ground 2 40 The learned Magistrate states as follows:47 The CCTV shows the van braking for a second after the collision and continu[ing] through the intersection. I have closely viewed the CCTV footage and find there is no evidence that the van swerved or braked before hitting Mr Kapitui. I also find that the CCTV does not support the defendant’s evidence that by [braking] and swerving he avoided hitting Mr Kapitui. I find it proved beyond reasonable doubt that the van collided with Mr Kapitui and that the defendant was the driver. I reject as a reasonable possibility the defendant’s evidence that he took evasive action by braking and swerving and avoided colliding with Mr Kapitui. 41 These matters were submitted by the appellant to be matters of circumstantial evidence upon which the learned Magistrate relied in reaching the conclusion set out at paragraph [95] in which the learned Magistrate found it proved beyond reasonable doubt that Mr Kapitui was injured and that the injury occurred as a consequence of the collision with the vehicle driven by the defendant. 43 AB at 28 and 36 (Verdict at 11, [58] and 19, [89]). 44 AB at 36 (Verdict at 19, [89]). 45 Amended Appeal (FDN 15), ground 2. 46 AT at T70.14. 47 AB at 28 (Verdict at 11, [57]-[58]). -- 12 of 13 -- [2025] SASC 191 Gray J 11 42 The learned Magistrate returns to the finding at paragraphs [57]-[58] later in the judgment and states inter alia:48 As detailed above, the CCTV footage shows the defendant travelling in the middle lane and it does not show the van braking or swerving before he approached and collided with the pedestrian. I therefore do not accept the defendant’s evidence that his van made a screeching noise before the collision when he applied his brakes or for any other reason. I find the defendant’s evidence in this regard inconsistent with the CCTV footage and lacking in credibility. The CCTV footage does however show the van braking immediately after colliding with the pedestrian. The defendant’s actions in braking at this point are telling. I find there is a strong inference that the defendant was aware that he collided with the pedestrian, felt the impact and reacted instantly by braking. 43 I consider that the finding at paragraph [57] contained an error of fact. This finding was erroneous because it was contrary to the evidence. I have viewed the CCTV footage and it shows the van braking before and after colliding with the pedestrian. This was accepted by both parties before this Court. I find that the finding made by the learned Magistrate was material to his Honour’s assessment of the defence as advanced by the appellant at trial.49 The finding was material to the learned Magistrate’s assessment of the credibility of the defendant’s evidence. The finding was also material to the finding made by the learned Magistrate concerning the defendant’s awareness that he had collided with the pedestrian. 44 It follows that I would allow ground 2 of the appeal. Conclusion and orders 45 Both parties submitted on appeal that if error was found in the reasoning of the learned Magistrate, then the conviction should be quashed and the matter remitted for retrial.50 I therefore make those orders. 46 The orders of this Court are: 1. The appeal is allowed on grounds 1(b) and 2; 2. The conviction recorded on 15 November 2024 is quashed; and, 3. The matter is remitted to the Magistrates Court for retrial. 48 AB at 36 (Verdict at 19, [89]). 49 See Trial Exhibit P6. 50 Both parties submitted remittal was the appropriate order because the availability of the statutory defence required on assessment of the evidence of the appellant which could not be assessed without seeing and hearing the evidence afresh: see AT at T96.-31-103.25. -- 13 of 13 --